Preston and Baker and Anor

[2014] FCCA 1329

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRESTON & BAKER & ANOR [2014] FCCA 1329

Catchwords:
FAMILY LAW – Parenting – two day hearing 2012 resulted in change of primary care arrangements and interim orders – 2012 findings included that children at risk of psychological harm if they remained in the mother’s care – dispute as to which parent should have sole parental responsibility – dispute as to whether the children should live in an equal shared care arrangement or live primarily with their father – case reopened contravention application.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA, 65N,

65P, 70NAC, 70NAE, 70NAF(1)

Preston & Baker and Anor [2012] FMCAfam 308
Re W & W (2001) 28 Fam LR 45
Suell and Suell (Re-opening) [2009] FamCA 55
MRR and GR [2010] HCA 4

Applicant: MR PRESTON

First Respondent: MS BAKER

Second Respondent: MR QUIGLEY

File Number: DNC 169 of 2011

Judgment of: Judge Harland

Hearing dates:

26, 27 and 28 March, 2 and 4 April and 30

May 2014

Date of Last Submission: 30 May 2014

Delivered at: Darwin

Delivered on: 24 June 2014

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

The First Respondent: In Person

The Second Respondent: No Appearance

ORDERS

1. That all previous parenting orders are discharged.

2. That the Father have sole parental responsibility of the children X born (omitted) 2008 (“X”) and Y born (omitted) 2010 (“Y”).

3. That the children spend time with the Mother during school terms as follows:

   a)   From after school Friday to before school the following Tuesday in each alternate week;

   b)     That X and Y be returned to the Father at (omitted) Primary School front office at 8.00am each alternate Tuesday upon changeover if the Mother is proposing for X not to attend school or Y not to attend day care for any reason whatsoever including illness.

4. That the children spend time with the Mother and Father during school holidays commencing in 2014 and in each year thereafter equally as follows:

   a)   In odd numbered years with the Father for the whole of the first term holidays and with the Mother for the whole of the third term holidays;

   b)     In even numbered years with the Mother for the whole of the first term holidays and with the Father for the whole of the third term holidays;

   c)     In even numbered years with the Mother for the first half of the second and fourth term school holidays and with the Father for the second half of the second and fourth term school holidays;

   d)     In odd numbered years with the Father for the first half of the second and fourth term school holidays and with the Mother for the second half of the second and fourth term school holidays;

   e)     In odd numbered years with the Father for the whole of Easter, calculated from after school Thursday to before school the following Tuesday and in the event Easter is not included in the first term school holidays  pursuant to Order 4.a) herein; and

   f)   In even numbered years with the Mother for the whole of Easter, calculated from after school Thursday to before school the following Tuesday and in the even Easter is not included in the first term school holidays pursuant to Order 4.a) herein.

5. That the time spent pursuant to Orders 3 and 4 continue irrespective of any days of significance and there be no change to any time spent unless agreed in writing between the parties.

6. That in the event the children are not otherwise in the mother’s care on Mother’s Day, the mother shall have the care of the children from 10.00am on Mother’s Day until 8.00am the following morning.

7. That in the event the children are not otherwise in the father’s care on Father’s Day, the father shall have the care of the children from 10.00am on Father’s Day until 8.00am the following morning.

8. That all changeovers take place at the children’s school during school term and at the playground (omitted) during school holidays.

9. That there be a mandatory injunction preventing the Mother from removing the children’s clothing at changeover and exchanging the children in their underwear.

10. That there be an injunction restraining the Mother from retaining the children in the event they are sick and a mandatory injunction ensuring the children attend school and/or day care on every week day and/or school day of any school term.

11. That there be a mandatory injunction preventing the Mother from attending day care or school at any time during which the children are living with or spending time with the Father.

12. That the children be permitted to travel interstate and/or overseas with either of the parties provided that the party with whom the children are to travel provides to the other party not less than 14 days notice and provides itineraries and contact addresses and telephone numbers for the children whilst they are overseas so that the children can communicate with the other party at all reasonable times.

13. That the Father provide to the Mother the children’s passports not less than 7 days prior to travel any notified overseas travel and the Mother return the children’s passports to be held by the Father after the conclusion of travel immediately upon return.

14. That the parents shall each keep the other parent advised of their respective telephone numbers, being a mobile telephone number and their respective residential addresses and each parent shall within 7 days of any change of either their telephone number or residential addresses, advise the other parent of that change.

Contravention Application

1. The mother is found guilty of one contravention of the orders made on 18 July 2012.

2. The mother is to pay the father’s costs of the contravention application of $1,661within 60 days of the date of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Preston & Baker & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 169 of 2011

MR PRESTON

Applicant

And

MS BAKER

First Respondent

MR QUIGLEY

Second Respondent

REASONS FOR JUDGMENT

1. X is aged six. Y is aged three and a half. On 4 April 2012 Turner FM[1] made orders removing X and Y from their mother’s care and placing them with the father. She gave detailed reasons for doing so. She made these orders after two days of hearing which included cross-examination of the parties and the family report order. She made the orders on an interim basis.

   [1] Judge Turner was a Federal Magistrate at the time of the interim orders. She is referred to as Judge Turner throughout the remainder of this judgment.

2. Since those orders were made the mother has spent the following periods with the children:

   a)Supervised at the contact centre from April 2012 until July 2012;

   b)From 18 July 2012 on alternate weeks from Thursday evening until Friday morning;

   c)From 27 July 2012 on alternate weekends from Friday until Monday morning.

3. It is significant that the mother’s increase in time in July 2012 was a result of consent orders entered into on 18 July 2012. The mother was legally represented at the time. The father was not.

4. Further consent orders were made on 29 August 2012 providing that if the children were unwell and unable to attend Mission Australia child care handover would take place a 4.30pm at CatholicCare. Handovers never took place at CatholicCare.

5. The parties agreed to further consent orders on 26 October 2012 providing for the mother to spend time with the children over Christmas and requiring the children to attend a psychologist.

6. The agreed issues are:

   a)The parents have great difficulty communicating which would make equal shared parental responsibility unworkable;

   b)that parents should share half the school holidays.

7. The issues in dispute at the final hearing are as follows:

   a)whether the father should have sole parental responsibility for the children;

   b)whether or not the parents should share significant days or alternate them;

   c)when and where changeovers should take place;

   d)the amount of time the children should spend with each parent;

   e)whether the injunctions the father seeks are necessary;

   f)each parent’s capacity to care for the children.

   g)The attitude of each parent towards the other’s parent’s role as parent.

8. The second respondent is X’s father. He has never participated in the proceedings.

The 2012 judgment and the continuing relevance of those findings

1. It is necessary to refer to the 2012 judgment in some detail to place the current hearing in context.

2. Judge Turner concluded that the children would be at risk of psychological harm if they remained in the mother’s primary care. She listed detailed reasons for reaching that conclusion.[2]

   [2] [25 (a)-(n)] Preston & Baker and Anor [2012] FMCAfam 308

3. Judge Turner also concluded that the children had been exposed to family violence by the mother and would continue to be exposed to family violence if they remained in her primary care.[3]

   [3] [31] Preston & Baker and Anor [2012] FMCAfam 308

4. It is important to note Judge Turner found that the father had retaliated against the mother by spitting at her on one occasion when she accused A, the father’s then 16 year old daughter of performing a sexual act on him.[4] He said on other occasions he had physically restrained the mother when being attacked by her. She found that this did not amount to family violence although the father’s actions were inappropriate.  Judge Turner found the mother admitted on her own evidence that she was prepared to lie to cause the father harm.  The most blatant example of this was the mother’s allegations with respect to the father’s daughter A and her refusal to acknowledge the harm that had caused not just to the father but to A.[5]

   [4] [34] & [35] Preston & Baker and Anor [2012] FMCAfam 308

   [5] [44(c)(iv)] Preston & Baker and Anor [2012] FMCAfam 308

5. During the 2014 hearing the mother said that she hoped A was unaware of these allegations.  However it is clear from the second family report, prepared before the 2012 hearing, which A participated in that she was aware of it.  The mother would know this from reading the report.  It does the mother no credit.

6. Judge Turner found that the mother was not a credible witness with respect to family violence allegations and details of her reasons for this.[6]  In that paragraph her reasons include the mother’s accounts, the lack of detail as to alleged violence by the father towards the children, the failure to produce witnesses and affidavits by those witnesses. She mentioned those witnesses in her June 2011 affidavit so had many months to obtain evidence from them. The mother did not produce medical or police records and never lodged an application for a domestic violence order. This is significant because the mother faces similar evidentiary problems in this current hearing. The mother maintains that she was in a violent, abusive relationship with the father. Yet she still, two years later, does not bring any evidence of this. She instead continues to make vague, unsubstantiated allegations despite claiming at the 2012 hearing that she had evidence that would support her claims.

   [6] [37 (a)-(o)] Preston & Baker and Anor [2012] FMCAfam 308

7. The mother appeared without legal representation at both the 2012 hearing and this hearing but had legal representation between the hearings.  She was well aware of the issues of concern to the court from the first hearing and aware of the areas where she lacked evidence.

8. The matter was listed for final hearing on 19 November 2013. The mother was present in court that day. She had ample time to gather whatever evidence she thought was necessary for her case.

9. I find that if such evidence existed the mother would have placed it before the court for the current hearing, particularly given her experience before the court in 2012.

10. Judge Turner found that the children were not at risk of exposure to family violence in the father’s care.[7] Nothing before me contradicts this finding.

    [7] [38] Preston & Baker and Anor [2012] FMCAfam 308

11. Judge Turner found for the reasons she listed that the mother had not shown any willingness and ability to facilitate and encourage a close relationship between the children and their father. Her examples included the mother openly denigrating the father in front of the children, comments in her affidavits to X about finding another father for her, breaching the court orders by refusing to engage the handovers at CatholicCare and frequently being late and unilaterally changing the periods of the father’s time with the children.[8]

    [8] [44(c)] Preston & Baker and Anor [2012] FMCAfam 308

12. It is striking that Judge Turner also found that: 

    “any attempt by the father with the mother to vary the time with the children or have additional time is met with either complete refusal, or such convoluted rhetoric under the guise of negotiation that in the end the father backs away.”[9]

    [9] [44(c) (iii)] Preston & Baker and Anor [2012] FMCAfam 308

13. This conduct has continued to the present day. Examples are set out later in this judgment. 

14. Judge Turner found the mother had not taken responsibility for her actions.[10]  Unfortunately as will become apparent later in these reasons this has not changed.

    [10] [44 (d)] Preston & Baker and Anor [2012] FMCAfam 308

15. Judge Turner expressed the view that the mother’s capacity to provide for the needs of the children would continue to be impacted by the mother’s mental health issues which had not been acknowledged or addressed. She noted that the mother’s complete lack of insight as to how her actions impacted on others. She lists her reasons for this finding at some length.  Judge Turner found that the mother was persistent in blaming and punishing the father. This too has not changed. [11]

    [11] [44(e)] Preston & Baker and Anor [2012] FMCAfam 308

16. Judge Turner place significant weight on the family report writer’s recommendations and found that the children were at risk of developmental damage if they remained with their mother. She found that it was unlikely that the mother would obey court orders in the future.  If the children remained with their mother it was a real risk that the father would become more worn down and it could impact on his parenting capacity. She recognised that the orders she made represented a huge change to the children’s living circumstances but noted that the report writer found that there was enough attachment for the children to maintain a relationship with their mother.[12] As will become apparent from this judgment these issues remain live.

    [12] [20] & [21] Preston & Baker and Anor [2012] FMCAfam 308

17. It is important to emphasise that although Judge Turner made interim orders she did so after two days of hearing evidence that was tested by cross-examination. The mother did not appeal this decision. She sought legal advice after the judgment and retained lawyers until late last year.

18. Judge Turner set out her reasons for making interim orders at [53]. Referring to how the mother’s time with the children would progress from supervised time as she stated that a report from a qualified health professional with respect to the mother would be “one vital and necessary part of that evidence”.[13]  The parties did not go down this path. They agreed on consent orders which removed the requirement for supervision and allowed the mother to have unsupervised overnight time after only three months.

    [13] [53] & [55] Preston & Baker and Anor [2012] FMCAfam 308

The parents’ parenting capacity

1. The mother focuses on lack of the diagnosis of the mental health issue for her as being the most significant factor as to why the children should be in her care. The mother complains that the father continually accused her of having a mental illness and “successfully convinced the court of this”.[14] This is not a fair reading of Judge Turner’s judgment. It is clear that Judge Turner raises concerns about the mother’s mental health based on her observations of the mother during the hearing.  A mental health diagnosis may have gone a significant way to explain the behaviours that Judge Turner has listed in detail of the judgment but the fact that there is not one does not change the seriousness of her conduct and the psychological harm that she inflicted on the children.  In fact it is more concerning, not less, as the inference must be that her conduct is deliberate, perhaps as part of her personality. It also means that the mother is unlikely to change.

   [14] [7] of the mother’s trial affidavit.

2. The mother lacks capacity to protect the children from her negative views about the father.  She inappropriately involves them in adult issues [See paragraphs 33, 34 and 41 of this judgment for examples].

The girls’ adjustment post 4 April 2012

1. It is important to note that two years have passed since those orders were made. There is no doubt that the April 2012 orders resulted in a major upheaval for everyone in this family which the court deemed necessary to protect the children. The mother annexes the handwritten notes from the children’s child care centre to her affidavit. Those are handwritten observations. Some of the notes are illegible.  The notes cover a short period from April 2012 to June 2012.  It would be surprising if the children did not have issues adjusting to what was a major change in the care arrangements.

2. There is no doubt that the girls had significant issues adjusting to the change in their care for the first months. This was to be expected. The child care notes are consistent with this. Mr V spoke to Ms S from the child care centre on 18 October 2012. By that time the children had settled into their new routines. This is not to say that the girls would not have been experiencing some ongoing issues but they were making progress.

3. The mother regularly kept the children out of daycare because of their alleged trauma. Mr V noted at [20] of his October 2012 report:

   “the mother aligned her position with her view about now sharing in parental responsibility, although her decisions and actions could be viewed as seeking to take control of parental responsibility, with her understanding of the girls’ situation being far superior to the father’s or even the court’s.”

4. This summarises the mother’s position well. She continues to display this attitude. The mother seeks to stress that the children are still traumatised, deflecting consideration of her own conduct and ignoring her own role in the children’s trauma.

The attitude of the parents towards the other’s parent’s role as parent

1. The mother says she supports the father’s relationship with the children but her actions belie this.  The mother has continued to make unsupported allegations about the father’s alleged violence.

2. The mother contends that X raises the issue of the father hitting her. She says X says she saw the father hit the mother. The mother says X was three and a half years old when she allegedly witnessed this. She says it has happened on about three occasions in the last three years.  The mother says that on these occasions she tells X that her father loves her and will not hurt her.

3. Exhibit B which is an email from the mother to the father dated 4 July 2013 is indicative of the mother’s attitude. Amongst other things the mother says in that email. “I have explained to both children ‘it is not ok for you to hit them” X then brought up when she has witnessed you hitting me, at which once again I assured her that daddy hurts me but he  doesn’t hurt you.” It is inappropriate for the mother to be saying these things to the children. All it does is reinforce her negative view of the father onto the children. It is not made better by telling the children that he only hurts her and not them.  Either the mother lacks insight or deliberately sets out to undermine the girls’ relationship with their father when she can.  I think there is likely to be a combination of these factors. Unfortunately the mother is unlikely to change. This is a reason for limiting her time with the children. As the children get older they will make their own judgments about their parents.  I am not satisfied that such violence ever occurred let alone that X witnessed the father being violent to the mother.

1. The mother was referred to one of her emails where she refers to the father’s two older children in a critical manner blaming the father. The mother did not respond to the question directly but said “I say its fairly unusual for a parent to have four children with mental health disorders.” This is very telling about the mother’s attitude towards the father as a parent. It is also an inaccurate statement.[15]  Given the mother’s reprehensible conduct towards A it is unwise for the mother to mention A at all. There is no evidence of the father’s children having mental health disorders. Even if they did it is certainly not reasonable for the mother to blame the father for that. It was clear that the mother continues to hold this attitude whilst being cross-examined.

   [15] Transcript 27/3/2014 page 51.

2. The mother’s destructive and negative attitude towards the father and the ongoing negative impact on the children is extremely concerning to the court.

3. Ms Farmer put to the mother during cross-examination that the mother has not moved on from the relationship issues. The mother denied this but her email dated 11 February 2014 contradicts this.  She again blames the father for the children being taken away from her and causing the children damage. She says the father is abusive when he responded to her saying:

   “No, I never asked for week on week off in the first place, back then I just wanted reasonable access to them which you refused to give. In the process of fighting for this your mental health issues were demonstrated very clearly and a Federal Magistrate took them off you.”

4. This statement is not abusive. It is important to remember Judge Turner’s comments in her judgment expressing concern about the mother’s mental health.  The mother seeks to take this out of context. The mother places much emphasis on an email the father sent her on 11 February 2014. He stated in that email that he had not wanted the children full time but had just wanted reasonable access to the children. The mother takes this email out of context. It is quite clear that the second family report released shortly before the 2012 hearing

5. The fact that the mother has not been diagnosed with a mental health issue does not vindicate the mother. It makes her appalling behaviour harder to understand.  She persists with her relentless negative of the father and persists in blaming him for the children being removed from her care. If she did have a mental health problem it could be addressed and there may be some hope that she would change her behaviour and attitude. As it stands the court cannot be confident that the mother will ever change. This is concerning because it is clear from her own emails that she does not shield the children from her attitude.  These emails are recent.[16]

   [16] See emails referred to in [35] & [41] of this Judgment.

6. The mother complains that the father has had the children looked after by multiple carers.  I do not find this to be the case.  I accept the father’s evidence.

The change of the girls’ schools

1. The father changed the girls’ schools at the beginning of the year. The father consulted with the mother about this despite not being required to because of the sole parental responsibility order in his favour.  Part of Exhibit D is an email from the mother to the father dated 4 February 2014 where she says “[d]ue to the girls distress at not being with their friends and you not supporting their friendships, I explained to them that I did not want them to go to a new day care or new school but you would not listen.” This is a clear example of the mother undermining the father as a parent. The mother’s inability or unwillingness to protect the children from her negative views remains very concerning. She may disagree with the father’s view but to involve the children in the dispute in this way is not child focused and is not in their best interests.

2. The mother vehemently opposed the change of school and argues that this shows a lack of insight on the father’s part. The father moved the girls’ preschool and school to ones closer to his home. If it were not for the girls’ history there would be nothing concerning about this proposal. Given the major changes the girls have experienced in the past two years it may have been better for the girls if they had not experienced another major change which changing schools invariably is.  However this is not to say that the father was not thinking of the girls interests when he made the decision.  It also must be made clear that there is simply no evidence before this court that the children are suffering ongoing significant trauma as alleged by the mother.  I also stress that some of the damage to the children is because of the mother’s conduct which at least to some extent is ongoing.

When and where handovers should take place

1. Ms Farmer cross-examined the mother about her alleged breaches of court orders. The father complains that the mother regularly disregards the orders with respect to the time and place for handover.

2. During cross-examination the mother said that the handovers continue to be very difficult.

3. The father outlines in his affidavit the difficulties he has in dealing with the mother about handovers on Fridays and Mondays.  The mother claimed that CatholicCare would not facilitate the handovers. She did not provide any evidence of this.  I do not accept her evidence.  It is clear from the 2012 that the mother did not comply with earlier orders about handovers at CatholicCare and she has continued with that attitude.

4. At the 2012 hearing the father presented a recording of the mother showing her verbal abuse of him in front of the children.[17]  The recording was not just of a one-off incident.

   [17] [25 (c)] Preston & Baker and Anor [2012] FMCAfam 308

5. The mother conceded that she does not see the children attending day care or pre-school as important as school and so if they were not well or “need a bit of healing time” with the mother she kept them home. She says she defines this need for “healing time” as the children being sick. I find the mother is disingenuous about this. She wants to spend more time with the children and has sought to use what she sees as a loophole in the orders to achieve this.  She told the family consultant during the last report interviews that they were better off with her.  When asked about this she then said that the children have been so traumatised that they need more time with her. She says it makes no difference as to whether they are at day care or pre-school or with her. She says school is different.  X started school this year.  Y is still in preschool.  The mother taking one or both children out of preschool leads to the problems with changeovers.

6. The mother admitted that she has handed over the children just in their underwear at a few handovers. She said that there was a phase were X did not want to wear clothes to her father’s because the clothes were not coming back. I do not accept this explanation. She conceded she has done this with Y as well but says it only happened once.  She sought to minimise this by saying they were just being transferred from one car to the other although in a public place. The mother said X was being defiant and the father could dress them in their clothes if he wanted to.  I find the mother’s explanation and attitude towards this unsatisfactory. It is difficult to believe that she has so little authority over the girls that she could not ensure they wore clothes to handovers.  It is more likely to be because the mother did not want the girls’ clothes to be taken to their father’s home.

7. At a handover shortly before this hearing, on 24 March 2014 the mother sent X to her father in bare feet. The mother claimed that X’s school shoes were in her school bag which she gave to the father. As it turns out during the course of the hearing she found X’s school shoes in her bag.

8. There were other difficulties with the handover on 24 March 2014. Both parties work in the city.  I am satisfied that the mother changes changeover times and locations without regard to the father’s commitments and without regard to the need for the girls to have a consistent regime. I find that it is likely the mother makes these changes to irritate the father. The orders are clear. She does not abide by them. She couches it in terms of convenience for both parents but it is clear that it is not about the father’s convenience. The mother is well and truly on notice that the father finds the continuing changes to handover times and locations stressful and wearing.  Despite this she has continued to do this with no apparent regard for the children and how the father’s stress might impact on them.

9. The mother’s response when faced with her emails where she nominated various collection locations and times is that the father could have nominated something else. That misses the point.

10. The only way to stop this behaviour is to make the order the father seeks which is to have the children returned to him at 8.00am on a Monday morning at (omitted) Primary regardless of whether the children are unwell or not. The father can take them home if they are unwell. 

11. The mother claimed that she could produce emails from the father in the past two years which would show an inappropriate tone and content. The father’s lawyer called for those emails to be produced Thursday 27 March 2014. The mother had ample opportunity during the course of the hearing which continued over a week later to produce them. She did not.  I infer from this that it is because the father communicates with her in a businesslike manner, even when provoked which is showed in Exhibit D.

12. Mr V emphasised when he was cross-examined about this that there needs to be consistency, reliability and predictability with respect to handovers for the children’s benefit.  It is important to limit the children’s exposure to negativity from either parent.  This of course does not need to be verbal or overt for the children to pick up on it.

Whether the injunctions the father seeks are necessary

1. The injunctions the father seeks are as follows:

   ·    That the mother be prevented from removing the children’s clothing and exchanging them in their underwear.

   ·    That the mother be prevented from retaining the children from school or day care even if they are sick.

2. I find that it is necessary to make the injunctions the father seeks in order to protect the children from the mother’s conduct so far as possible.

3. I am not satisfied that the mother will not repeat her conduct if given the opportunity.

Whether or not certain special days should be shared

1. The father submits that because of the ongoing communication difficulties between the parties and the issues with changeovers that there should not be provision for special days which would depart from the usual pattern and that the special days should fall where they fall.

2. The family consultant said during cross-examination that having changeovers on Christmas Day given the family dynamic could put the children at emotional risk.  I find that it is in the children’s best interests not to have any changeovers on Christmas Day and other special days apart from Mother’s Day and Father’s Day which the parties have agreed to swap.

Assessment of Ms D’s evidence

1. The mother also sought to rely on Ms D’s comments on the child care notes which are annexed to the mother’s affidavit. I disallowed this annexure for reasons I will expand on later in these reasons.

2. It is clear that the mother was not entirely truthful with Ms D if her own mother is to be believed. In her first report at page 3 Ms D records that the mother’s father was an alcoholic, violent to her mother and “probably controlling in the early years of the marriage”. The mother’s parents are still together after more than 44 years. Ms Baker vehemently denied that her husband was an alcoholic or violent.

3. The mother described the father as “very controlling” and violent to Ms D. I do not accept that the mother recounted an accurate history to Ms D. It is significant that Ms D says at page 4:

   “It would seem that Ms Baker’s exaggerated responses to events in the relationship with Mr Preston can be better understood if the relationship is viewed as an abusive one. Despite Ms Baker not being able to produce the evidence for this in the hearings to date she is confident she will be able to do so in the future. … Ms Baker has been very naïve and is clearly inexperienced with the workings of the Court. … she … has now suffered the consequences of dealing with people far more experienced in this domain.”

4. First it is necessary to state that there is no evidence that the father has been abusive of the mother. The only evidence of abuse is the mother’s conduct which resulted in the orders made on 4 April 2012. Furthermore there is evidence that the mother has continued in behaviour which exposes the children to her relentlessly negative views about the father. Despite having two years to produce evidence to support her claims about violence she has not produced any evidence. The last two sentences of the above quote also cannot be supported.  The mother does not present to this court as naïve. She instructed solicitors to act for her in between the hearing but not at the second hearing. She did not reflect on and address the serious issues raised in the 2012 hearing.

5. Ms D’s assessment in her first report of the mother’s ability to move on and adopt a co-operative approach is not borne out by the evidence.

6. Ms D went beyond her remit by then commenting on her concerns about the arrangements for the children. She criticises the 4 April 2012 orders and says that “they have set these children up for significant trauma”. She comments on the children without having met them, relying on unreliable information from the mother and third party documents. The mother has latched on to these comments and has not addressed the issue which led the court to make the orders it did. It is most unfortunate that Ms D did this.  Ms D went further and approached the family consultant to discuss her views on this. This was inappropriate.

7. Ms D provided a further updated two page report dated 27 March 2013. Again it is clear that the mother has not reported accurately to Ms D as she says that the mother only communicates with the father about the children and only communicates respectfully. This is simply not true. Again she comments on the research about attachment without meeting the children and seeing the children with the father.

8. Ms D was cross-examined.  She said she would be most concerned if the children were still being exposed to conflict.

9. The verbal abuse may no longer be continuing but the mother’s written communication must be stressful for the father to deal with. She does still bombard him, just via email.

10. The issue about whether the change of school is a big issue depends on whether or not it is accepted that the children have been psychologically damaged as then it would be imperative that they be kept in secure and stable environments such as the day care.

11. Ms D relied on the mother’s reports, the documents she saw and her conversation with Ms K. She has not seen the third family report.

12. When faced with the mother’s email of 14 February 2014 as an example Ms D conceded that it was inappropriate for the mother to tell X that she did not agree with the father changing her school.

13. I find that Ms D has based her assessment on false information provided by the mother.  Ms D sought to characterise the mother’s behaviour being based on the trigger of the father changing schools. I do not accept this. There is evidence that whilst the mother has toned down her communication with the father she has been persistent in her attitude and she has not demonstrated a real change and insight since the 2012 orders.  I suspect she has modified her behaviour to some extent but has still holds the same views and has latched on to comments Ms D has made about the children’s trauma to deflect from her own behaviour. Ms D maintained her views attach trauma to the children in a defensive manner when cross-examined. Ms D went beyond her remit by delving into this area and has based it on second-hand information. General views about attachment and trauma can only go so far. It is of limited value because it is general and not applied directly to experience of these children.

14. In Re W & W (2001) 28 Fam LR 45, Nicholson CJ and O’Ryan J discuss the grave dangers in relying upon expert evidence in children’s cases where the expert has not had an opportunity of having both parents and the child attend upon the expert (see [147]). In this case Ms D only saw the mother. She did not see the children or the father. It has been established that the mother was not honest with Ms D. For all of the reasons discussed in the section I do not place my weight on Ms D’s evidence.

Ms K

1. Ms K was engaged by the parties to provide therapy for the children. The mother sought to call Ms K as a witness. She was not available. Despite the mother having ample notice of the hearing dates for several months the mother left arranging for her to give evidence until the last minute.  I admitted the report and correspondence into evidence as an exhibit for the purposes of having the correspondence and reports because they were referred to several times during the course of the hearing.  As I emphasised during the hearing I cannot place weight on the report as Ms K was not available for cross-examination.  It is clear from the correspondence from Ms K that X missed several appointments.  The father says this is because the mother was responsible for paying for them.

2. It would be naïve to think that the children were completely recovered from the trauma of the change of residence after a few months.  It does seem clear that the children are progressing reasonably well.

3. Ms Baker says that Ms K recommends a week about arrangement.  Ms K was not available to be asked questions about this.  If a shared arrangement is to work there needs to be consistency of routine and some level of communication between the parents.  Most importantly the children need to be safe in both households and free of psychological pressure.  They are not in the mother’s household.  It is clear that the mother loves the children dearly, as does the father and both parents can provide for the children physically, materially and intellectually.  The issue is their psychological welfare.  There is clear evidence that the mother has not been able to modify her behaviour to protect the children at all times from her obsession with what she perceives as the father’s failing and promoting her own cause.  The 2012 judgment and the consequences of that was not enough to shock the mother into change and it seems that nothing will be.  I find that it is not in the children’s best interests for the children to be in their mother’s primary care or for the children to live in a week about arrangement.

The family consultant

1. Mr V has prepared three family reports in these proceedings. His last report was prepared in October 2012.  In his third report he noted that the mother had gathered a team of experts around her. What Mr V says at [53] & [54] of his third report is significant.

2. The mother would have breached the primary attachment through “substantial emotional harm or had come extremely close to it”.  He observed that she showed no insight into the trauma she has put the children through.  The children undoubtedly suffered from the sudden shift from living primarily with their mother to their father but also from “the trauma their mother had been putting them through”.

   “The psychological report refers to the brain development of children and the critical connection it typically has with the primary attachment parent. Brain development also involves critically an effective hierarchy of attachment figures, working reasonably cooperatively to achieve the best emotional and cognitive environments for the children as possible.  In separated families riven with parental conflict, and when that conflict would seem to be driven essentially by the one in pole position as primary focal parent, the attentiveness to brain development moves into a very different context.”

1. The mother complained that Mr V has associations with Mr Preston’s step-mother Ms J.  The mother claims that she found out about this connection sometime after the 2012 hearing.  She did not raise it with Mr V during the interviews in October 2012.  She did not raise it with him until last week.  I am satisfied that Mr V has had a passing professional association with Ms J years ago when they worked at the same school.  They did not work together.  I am satisfied that this connection is remote and has no bearing on independence of his role here.

The amount of time the children should spent with each parent

1. The mother seeks a week about arrangement. It is clear from her oral evidence that she does not think this is in the children’s best interests and would prefer to have the children live primarily with her.

2. The family consultant confirmed during cross-examination that with the level of conflict between the parties a week about arrangement would not be in the children’s best interests. The young ages of the children is also a factor against it.

3. The father proposes that the mother continue to spend four nights a fortnight with the children during school terms but that this should be spent in one block instead of two.

Credibility of witnesses

1. It was necessary to warn Ms Baker to listen to the questions she was being asked and to answer those questions on several occasions when she was being cross-examined.

2. The mother took the opportunity when she could to complain that the father was violent to her in front of the children. When she did this she was not being responsive to the questions she was being asked and was trying to deflect criticism of her own behaviour.[18]

   [18] Transcript [32] 27/3/2014

3. The mother claims that Ms D made a notification to the Department of Children and Families (DCF) because she was allegedly concerned that the court orders were made amounted to child abuse. She was granted leave to issue a subpoena to DCF at short notice. As the mother did not tender any document from the DCF records I am entitled to draw an inference that there is nothing in the DCF material which would support the mother’s case.

4. The only document tendered from the DCF file is a letter to the father dated 4 April 2014. The letter advises that as a result of the DCF investigation allegations of physical and emotional harm were not substantiated against him. Emotional harm was substantiated against the mother because of her ongoing verbal and physical abuse against the father in front of the children.  This is significant. I infer that there was nothing in the DCF file to support the mother’s case.

5. It was clear from the maternal grandmother’s affidavit and oral evidence that she is strongly aligned with her daughter.  I agree with Mr V’s assessment that the maternal grandmother believes whatever the mother says as “gospel truth”.[19]

   [19] [68] Family Report 3, 25 October 2012.

6. The mother and her mother portray the mother as a victim in all this. I do not find that the mother has genuinely taken responsibility for her actions. She somewhat reluctantly comments on her responsibility when pressed but my impression is this is because she is well aware having not appealed the judgment that the reasoning in that judgment stands.  I did not find the mother to be genuine.  She was not a credible witness.

Contravention application and further submissions

1. When assessing the evidence whilst writing this judgment I became increasingly concerned that the orders the parties have consented to, to share the holidays equally are not in the children’s’ best interest. The father also filed a Contravention Application after I reserved the decision.  I relisted the matter for mention and raised the issue as to whether the father was seeking to re-open the hearing because of the contravention.  He made that application orally.  I raised my concern about proposed consent orders for the holidays and listed the matter for further hearing and submissions.

2. Mr Preston filed a Contravention Application on 8 May 2014. It alleges one breach of orders of Order 2 and 3 of the Orders made on 18 July 2012.  In Suell and Suell (Re-opening) [2009] FamCA 55 the Court said with respect to child-related proceedings, the Court may decide to allow a party to reopen a case if the court considers it may assist the parties in determining the issues between the parties. A consideration is whether it will assist the Court in determine whether it is in the children’s best interests.

3. The alleged contravention concerns a handover on Monday 5 May 2014 which was the May Day long weekend in Darwin. The issue of the mother’s refusal to comply with orders around drop off times and changeovers was a live and important issue during the hearing. For this reason the issue of whether or not the mother contravened an order after the case finished is relevant to the decision I have to make in the children’s best interests.

4. I re-opened the hearing.  I directed the parties to file evidence with respect to the contravention.

5. The father alleges that the mother breached the orders when she did not return the children on the May Day public holiday Monday. The mother agrees that she did not return the children that day but asserts there was a verbal agreement and therefore she did not breach the orders.

6. Order 2 of the Orders made on 18 July 2014 provide for the mother to spend time with the children from Friday evenings until Monday mornings on alternate weekends.

7. The mother took another opportunity in her affidavit which was meant to focus on the contravention issue to make a vague self-serving assertion that she was in a violent, abusive relationship with the father. Ms Farmer objected to several parts of the mother’s affidavit which were not relevant. I struck those paragraphs out.

8. The mother says that her then lawyer came to an agreement with the father outside of court on 18 July 2012 with respect to all future public holidays. She says that the agreement was that if the mother’s weekend fell on a public holiday her time would be extended. The father says that such a discussion did not take place.

9. Order 2 of the orders made on 18 July 2012 provide for the mother to have alternate weekends with the children from Friday evenings to Monday mornings. The orders do not mention any extension of time if the weekend falls on a public holiday.

10. Order 3 of the orders made on 18 July 2012 is not applicable as this order was overtaken by the order made on 29 August 2012 changing the handover location.

11. The father says there was no agreement for the mother to keep the children for additional time. He annexes emails he sent to the mother asking about when and where he could collect the children on Monday. He sent the first email on Saturday 3 May 2014 and the second on Monday 5 May 2014. He did not receive a response. He asked the police to conduct a welfare check which they did. The mother returned the children to school the following morning.  The mother says she left her phone at work and did not see the father’s emails until after she returned to work

12. The father annexes correspondence from DS Family Law dated 19 July 2012 which refers to a one off agreement for the mother’s weekend time being extended for the public holiday on 27 July 2012. There is no reference to any general agreement about all future public holidays.

13. Both parties were cross-examined. The mother’s version simply does not make sense. If the parties had reached an agreement about all future public holidays it would have been recorded in the consent orders the parties made that day. The letter from the mother’s own lawyers dated 19 July 2012 is inconsistent with there being an agreement about all future public holidays.

Legal Principles Applying to contravention applications

1. The father’s contravention application is commenced pursuant to Division 13A of Part VII of the Family Law Act1975 (“the Act”). Section 70NAC of the Act sets out what it means to contravene an order:

   Meaning of contravened an order

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)     where the person is bound by the order--he or she has:

   (i)  intentionally failed to comply with the order; or

   (ii)  made no reasonable attempt to comply with the order; or

   (b)     otherwise--he or she has:

   (i)  intentionally prevented compliance with the order by a person who is bound by it; or

   (ii)  aided or abetted a contravention of the order by a person who is bound by it.

   Note:          Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.

2. Section 70NAE of the Act discusses the meaning of reasonable excuse:

   Meaning of reasonable excuse for contravening an order

   (1)  The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

   (2)  A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)  the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)  the court is satisfied that the respondent ought to be excused in respect of the contravention.

   (3)  If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

   (4)  A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a)  the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (5)  A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)  the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (6)  A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

   (a)  the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (7)  A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

   (a)  the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

3. The standard of proof in contravention proceedings is on the balance of probabilities: (section 70NAF(1) of the Act).

4. In contravention proceedings, the general obligations created by parenting orders need to be considered. Thus, in the present case, section 65N of the Act may be relevant. It states:

   General obligations created by parenting order that deals with whom a child spends time with

   (1)  This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.

   (2)  A person must not:

   (a) hinder or prevent a person and the child from spending time together in accordance with the order; or

   (b)  interfere with a person and the child benefiting from spending time with each other under the order.

5. Division 13A of Part VII empowers the Court to do certain things depending on whether the contravention is alleged but not established (subdivision C), whether the contravention is established but a reasonable excuse for the contravention is found (subdivision D) and whether the contravention is found without reasonable excuse – or to be a less serious contravention (subdivision E) and finally where contravention is found without reasonable excuse but more serious contravention (subdivision F). There is no suggestion on the facts of this case that if the contravention is established, it is a more serious contravention as contemplated by subsection F. It is also clear beyond doubt that the Court has power to vary the primary parenting order irrespective of which subdivision applies.

Conclusion with respect to the father’s contravention application

1. I find that the mother breached the order. I do not accept that there was any verbal agreement as the mother alleges.  It is simply not credible that these parties would have made an oral agreement on the same day as consent orders were made and not have that included in those consent orders.

2. I am satisfied that the mother understood and knew her obligations under the order but chose to ignore them. This is consistent with her previous behaviour.

3. I now have to consider what penalty to impose. This is the first time the mother has been found guilty of contravening the orders.  I do not consider that ordering the mother to attend a parenting course or receive further counselling will be of any assistance as the mother has fixed views and lacks insight. She has not been honest with Ms D when seeking assistance from her.

4. The father seeks his costs in the sum of $1,661 in accordance with the Federal Circuit Court Costs scale. The normal rule is that each party pay their own costs. I find in this case it is appropriate to depart from that rule. The father has been wholly successful in his application. I have no evidence before me about the parties’ financial circumstances but both parties are employed in the public service. I will order that the mother pay the father’s costs in the sum of $1,661 within 60 days of the date of the orders.

Legal principles

1. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. Section 60B(1) provides that the objects of Part VII are to ensure that the best interests of the children are by:

   a)Ensuring the children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests;

   b)Protecting them from physical or psychological harm, from being exposed to abuse, neglect or family violence;

   c)Ensuring they receive adequate and proper parenting to help them achieve their full potential; and

   d)Ensuring that their parents fulfil their duties and meet their responsibilities concerning their care, welfare and development.

3. Section 65D of the Act gives the court the power to make a parenting order which is defined by section 64.

4. In deciding whether to make a particular parenting order section 60CA requires that I must consider the matters set out in section 60CC(2) being the primary considerations and section 60CC(3) being the additional considerations.

5. There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B that the best interests of the children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

7. There are 13 additional considerations that are set out in section 60CC(3) which I will refer to later in these reasons.

8. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child's best interest being treated as paramount.

9. Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children of family violence (section 61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the child from the parents to have equal shared parental responsibility (section 61DA)(4)).

10. If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility I am then required by section 65DAA(1) and (2) to consider whether to make orders that the children spend equal time and if not equal time then substantial and significant time with each parent.

11. For a parenting order to involve the children spending substantial and significant time with a parent section 65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child's daily routine and on occasions and events that are of particular significance to the child and the child to be involved in occasions and events that are of special significance to the parent.

1. In MRR and GR [2010] HCA 4 the High Court found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that is it reasonably practicable for a child to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the High Court said:

   “Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

2. The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:

   “Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”

Evidentiary principles in parenting cases

1. Division 12A of the Family Law Act 1975 applies to parenting cases. Both parties quoted emails in their affidavits without annexing the emails themselves to their affidavits. The court cannot place weight on extracts of emails as it is impossible to know whether or not they have been taken out of context and/or edited. The mother included emails annexed to her affidavit at annexures GB1 and GB7 and were not a simple printout from her gmail account. They could have been edited. Particularly due to the split nature of the hearing taking place on various days spread over a two week period, the mother had ample opportunity to provide the emails she claims to have. In contrast to the mother the father did tender emails to the Court.

2. The mother’s affidavit is significant for what it does not say and does not address.  It is clear from her affidavit that the mother’s attitudes have not changed.  The mother’s affidavit is drafted without the filter of a legal representative.

3. The mother makes numerous allegations in her affidavit which are not supported by evidence.[20]  The mother criticises the father for taking Y to Dr K and allegedly not telling Dr K the full story. She does not produce any documentary evidence to refute Dr K’s diagnosis.

   [20] For example [10] Y being unwell.

4. The mother places much emphasis on her observations of the children post the April 2012 orders and what she says is the trauma done to the children by those orders. She does not make any acknowledgement anywhere in her affidavit that the children were removed from her care to protect them from the risk of harm if they remained in her care. The court did not do this lightly.  The mother’s answers in cross-examination illustrate her attitude where she sought to minimise any negative effect of her conduct on the children by saying they did not show any signs of being affected, when pressed she would assign her conduct a ‘minor percentage’ to the psychological harm suffered by the children.[21] 

Application of legal principles to the facts of this case

[21] Transcript 27/03/2014 [31]-[32]

Which parent should have sole parental responsibility?

1. Ordinarily the presumption that an order for equal shared parental responsibility is in the children’s best interest applies. That presumption may be rebutted when there is evidence that it is not in the children’s best interests for their parents to share equal parental responsibility.

2. Exhibit D is a series of emails between the parties which cover a two year period. The chain on 21 August 2013 starts with the father advising the mother about Y’s consultation with Dr K. The mother’s response is to disbelieve Dr K’s diagnosis and to attack the father, referring to him being in denial about what she alleges he is doing to the children.

3. The series of emails reflect very poorly on the mother. The father attempts to keep a business like tone with the mother, informing her about things relevant to the children’s welfare and trying to arrange changeover times and locations. This is in the face of the mother continuing to attack the father.  Again the mother claimed that she would be able to tender emails that would create a different picture. Despite being given the opportunity to do so she could not produce them. There is no change to the flavour of the emails from 2012 to 2014. Numerous examples can be given. For instance on 16 January 2014[22] the mother emailed the father criticising the father for failing to look after Y’s vagina (she has complained about this before). She said “what on earth are all the sores on Y’s [sic] vagina, once again I have taken photos of you not taking care of her but this is ridiculous. The poor little thing. What has happened to her”. Again there is no medical evidence supplied by the mother. What is most concerning is what message Y must be getting from the mother taking pictures of her vagina.  Given the other evidence of the mother’s conduct it is likely that mother tells X that it is the father’s fault for not taking care of her.  The father’s response the following day is also telling. He wrote:

   “She had symptoms of irritation there when I collected her after her weekend with you which I thought may have been caused by chaffing as it has in the past. I will take her to the doctor if required and let you know the outcome.”

   The father does not rise to the bait and responds in a business-like manner. The mother replies accusing the father of lying, stating again that she has photographic evidence to ‘prove it’.

   [22] Part of exhibit D

4. Exhibit E is another email exchange between the parties on 11 February 2014. This is the email which the mother takes out of context in her affidavit.  Almost two years after the interim hearing the mother takes no real responsibility for what happened and instead blames the father.  She states that she will not accept anything less than a week about arrangement “and even these will not go far enough to heal the damage you caused them.” The father did not cause damage to the children. It was the mother’s actions as Judge Turner’s judgment makes very clear. The court is not obliged to make orders in accordance with either parties’ proposal but must make orders in accordance with the children’s best interests.  It cannot be reasonably suggested that the court simply acquiesced to the father’s request.

5. The parents agree that the communication between them is such that equal shared parental responsibility would be unworkable.  I am comfortably satisfied on the evidence that the conflict between the parties is so high, years after separation that it would not be in the children’s best interests for these parents to share parental responsibility.

Family violence

1. I have discussed this elsewhere as I am satisfied the father has not been violent towards the mother.

Primary considerations

1. There is no doubt that the children enjoy a meaningful relationship with both parents. The real issue of concern in this case is the exposure of the children to psychological harm or family violence.

2. In 2012 the Court found that the mother was exposing the children to psychological harm.

3. There is evidence that the mother has continued to expose the children to psychological harm: see [35] of this judgment.

Additional considerations

1. Not every additional consideration listed at section 60CC(3) of the Family Law Act 1975 is relevant to this case. I will now discuss the relevant considerations.

2. There is no doubt that the mother and father are both able to look after the children’s material, physical and intellectual needs. The issue is the parents’ emotional and psychological needs.

3. I am satisfied that the father is able to look after the children’s emotional and psychological needs. I cannot say the same about the mother.

4. I have already discussed at length the mother’s attitude towards the responsibility of parenting.  I will not repeat them.

5. The father has shown a respect for the mother’s role as parent by continuing to inform her about decisions despite not being obliged to as he has sole parental responsibility and the mother is often critical and denigrating in response.

6. The father has offered the mother additional time with the children.  Significantly this includes offering additional time when the mother’s mother was visiting in mid-2012.  The mother criticises the father for not offering more than he has and for not being flexible but that ignores the context of this case.

7. The father has shown a willingness to facilitate and encourage a close and loving relationship between the mother and the children.  This is evidenced by the 18 July 2012 consent orders, the other times he has offered the mother and his emails keeping the mother advised as to issues concerning their welfare.  The mother has not shown such a willingness and continues to attack and blame the father rather than taking responsibility for her own actions.  I am not satisfied that she will ever encourage the father’s relationship with the children.  Concerningly the mother is likely to continue to talk negatively about the father to the children.  It is impossible to protect the children entirely from this without cutting the children off from their mother entirely. No one is seeking that.  I raised concerns about the mother having half the holidays and even four nights a fortnight because of these concerns.  The father’s submission in response to this was insightful.  He submitted that the children love their mother and want to spend time with her.  On block period will reduce difficulties with changeovers.  He will have the children for a sufficient block period to address any negativity from the mother.

8. The mother presses for a week about arrangement.  There is the potential for the children to be further damaged on an ongoing basis for that to be in their best interests.

9. I also sought further submissions as to whether or not the children should spend half the Christmas holidays with the mother.  The parties agreed to this at the hearing.  I raised the concern based on the evidence.  The father submitted that the mother could have the children for a two week period and for a long weekend during the longer period the children are with him.

10. On reflection I have decided to leave the holiday arrangements as agreed between the parties originally.  The mother has family in Western Australia.  They both want to be able to travel.  It is one reasonably lengthy block period once a year.

11. There are no issues of reasonable practicability and expense of the parents spending time with the children.

12. It is hoped that these orders will not lead to further proceedings.  An equal time arrangement is not in the children’s best interests and would likely lead to further applications.

13. This is not a case where the parties can be flexible and make different arrangements.  For the reasons discussed above I make the orders which appear at the beginning of this judgment.  It is important that both parties follow the orders.

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date: 24 June 2014